More precisely, Cruz
Lopez is suing under 18 U.S. Code § 2707(a)-(c), which creates a civil cause of action for anyone “aggrieved by” a violation of the Stored Communications
Act.Complaint ¶ 89, Cruz Lopez v. Pena, 2012 WL 3307530. The Complaint alleges that Pena violated 18 U.S. Code §§ 2701(a) and 2703, as noted
above. Complaint, Cruz Lopez v. Pena,
supra, at ¶ 88.Pena has filed a motion to dismiss the claims
under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which lets a
defendant argue that the plaintiff’s cause of action is not valid.

As to how the case
arose, the Complaint says Cruz Lopez, “who is a citizen of and is domiciled in
Mexico”, for years flew to the United States to spend holidays with his
long-time friend, James Fox, a U.S. citizen who “is domiciled in Amarillo,
Texas.”Complaint, Cruz Lopez v. Pena, supra,
at ¶¶ 3-4, 10-13.On August 8, 2009, he
arrived at the DFW International Airport and presented his Mexican passport,
visa and “immigration and customs” documents to a CBP agent. Complaint, Cruz Lopez v. Pena, supra, at ¶ 14.

Cruz Lopez was told
“he would be subject to secondary inspection and was sent to the back offices
of the CBP for questioning.Complaint, Cruz Lopez v. Pena, supra, at ¶ 14.One officer
questioned him in English, after which another officer translated the questions
into Spanish. Complaint, Cruz Lopez v.
Pena, supra, at ¶ 15.Cruz Lopez told them that he was here to visit his
friend Foxe, he is retired and “was not working in the U.S.” Complaint, Cruz Lopez v. Pena, supra, at ¶ 15.The officers
told him to go sit on a bench in the hallway. Complaint, Cruz Lopez v. Pena, supra,
at ¶ 15.

After
a period of time, an officer screamed at Cruz Lopez, telling him to come back
into the office. The officers proceeded to take all of [his] possessions;
opening his computer case, rifling through his wallet, and throwing his
personal possessions and papers on the desk and the floor. Within Cruz Lopez's
wallet, in addition to money and personal items, such as pictures, were several
Post-It notes.

The
Post-It notes had handwritten information including the User ID and password of
Cruz Lopez's on-line bank account and personal email accounts. Cruz Lopez was
sent in and out of the office on several occasions, forced to leave all of his
possessions, including a password protected laptop, camera, cellular phone,
wallet and its contents, documents, and all other items with the CBP Officers.

Complaint, Cruz Lopez v. Pena, supra, at ¶ 16.

The Complaint (and this
is Cruz Lopez’s version of these events) says that “[f]or more than 16 hours”
he was interrogated by the CBP officers. Complaint, Cruz Lopez v. Pena, supra,
at ¶ 17. The Complaint alleges that the officers tried to get Cruz Lopez to
admit “that he was working for Foxe”, but he repeatedly told them the two are
friends and he “was not working in the U.S.”Complaint, Cruz Lopez v. Pena,
supra, at ¶ 18.

At
one point . . . while Cruz Lopez was sitting outside of the office, Pena
slammed a piece of paper against an office window for Cruz Lopez to see and
gleefully yelled `No, really’ (`No que no’). The piece of paper was later
identified as a copy of a deposited check printed off of Cruz Lopez's on-line,
U.S. Wells Fargo bank account. Pena told Cruz Lopez the document was proof that
[he] was working in the U.S.

Complaint, Cruz Lopez v. Pena, supra, at ¶ 19.

The Complaint says
Pena also called Foxe on his cell phone and Foxe told him “Cruz Lopez was not
working for him, but indeed is a close family friend and a welcome guest at his
home.” Complaint, Cruz Lopez v. Pena,
supra, at ¶ 23.During the course of the secondary inspection,
Cruz Lopez was patted down, fingerprinted and “handcuffed and sent to a van to
be transported with other individuals to jail.”Complaint, Cruz Lopez v. Pena,
supra, at ¶ 20. That seems to have
been the result of what happened earlier:

Pena
executed an Expedited Removal Order and applied a five year bar of
inadmissibility against Cruz Lopez. According to official documentation, `you
are being expeditiously removed from the United States for charges 212 (a) (7)
(A) (i) (I) of the INA, you will be barred from re - entering the U.S. for a
period of no less than 5 years and admissible after this time only with the
proper visa and waiver of admissibility to the United States.’

The
document further stated, `You are an immigrant not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing card, or other valid
entry document required by the Immigration and Nationality Act’, and `It is
likely that you have engaged or will engage in unauthorized employment in the United
States.’

Complaint, Cruz Lopez v. Pena, supra, at ¶ 19.

Cruz Lopez was held
overnight “at the Bedford jail” and was not allowed to take the blood pressure
medicine had had taken for over ten years. Complaint, Cruz Lopez v. Pena, supra,
at ¶ 24.The next day he was “paraded in
handcuffs through the DFW airport by CBP officers to a departure gate.” Complaint, Cruz
Lopez v. Pena, supra, at ¶
25.He “asked if his luggage and
personal possessions would be returned to him”, and “was given an envelope with
papers, boarded onto the plane, where his personal items were finally returned.”
Complaint, Cruz Lopez v. Pena, supra, at ¶ 25.

Cruz Lopez hired a
lawyer and tried to seed redress from the “wrongfully executed Expedited
Removal Order”, apparently to no avail.Complaint, Cruz Lopez v. Pena,
supra, at ¶¶26-42. So this lawsuit followed.The opinion notes that “in a January 2012
FOIA disclosure,” Cruz Lopez “claims to have discovered that” while he was
detained

Pena
had accessed at least six emails from his Yahoo! account: (1) a message sent to
Cruz Lopez by an acquaintance on May 8, 2009; (2) and (3) Cruz Lopez's May 15
responses to the May 8 message; (4) the acquaintance's May 18 response to at
least one of Cruz Lopez's May 15 responses; (5) Cruz Lopez's June 27 response
to the acquaintance's May 18 response; and (6) Cruz Lopez's July 4 response to
the acquaintance's May 18 response. Cruz Lopez also alleges that Pena may have
accessed other emails, including unopened messages.

Cruz Lopez v. Pena, supra.
(FOIA refers to the Freedom of Information Act.) As to the emails, the
Complaint alleges that

83. The
documents produced in March 2012 by USCIS in response to Cruz Lopez's FOIA
request include copies of several e-mail communications between Cruz Lopez and
an acquaintance sent through [his] Yahoo e-mail account.

84.
According to markings on these documents, the e-mails were printed on August 8,
2009, in the United States.

85.
Cruz Lopez had not downloaded those e-mails to his computer, and thus the
emails were not stored on his laptop computer when he arrived at the
Dallas-Fort Worth Point of Entry prior to his detention by CBP on August 8,
2009.

86.
Cruz Lopez did not print copies of the e-mail communications contained in the
USCIS disclosure on August 8, 2009, nor did he have the means or access to any
device by which he could print those e-mail communications on that date, while
he was detained by CBP.

87.
Yahoo is an `electronic communications service’ under the Stored Communications
Act, as it is a `service which provides to users thereof the ability to send or
receive wire or electronic communications.’ See 18 U.S. Code §
2510(15).

88.
Pena, without Cruz Lopez's authorization, willfully and intentionally accessed
Yahoo's facility or computer system through which electronic communications are
provided and obtained Cruz Lopez's electronic communications while those
communications were in electronic storage within Yahoo facility or system. In
doing so, Pena violated the Stored Communications Act, 18 U.S. Code § 2701(a).

76.
In March 2010, [Cruz Lopez] obtained, from Wells Fargo, a log which contains
entries showing access into [his] account on August 8, 2009, while Cruz was detained
and interrogated by the CBP.

77.
The March 2010 Wells Fargo log shows Cruz Lopez's account was accessed on
August 8, 2009, by a computer or other device with an assigned IP address of
63.167.255.152, corresponding to IP address `DHS/CBP’ and domain name
`DHS.GOV.’

78.
Documents later obtained pursuant to a USCIS FOIA request include a copy of a
check made by Foxe, drawn on his Wells Fargo account, payable to Cruz Lopez.

79.
The same documents show Pena included a copy of the check as support for his
erroneous determination that Cruz Lopez was working for Foxe. A copy of the
check was attached to Pena's affidavit and report in support of the CBP's
Expedited Removal. Cruz Lopez did not carry a copy of the check and deposit
record on his person when he arrived at the United States Point of Entry on
August 8, 2009. Neither did he print a copy of the check or deposit record from
his Wells Fargo account on August 8 or 9, 2009. Thus, Pena accessed Cruz
Lopez's account without [his] consent and obtained [his] financial records. . .
.

Complaint, Cruz Lopez v. Pena, supra. (The bank records were the basis of another claim, but it
was apparently dismissed earlier in the case . . . leaving only the Stored
Communications Act claim. Cruz Lopez v.
Pena, supra.)

The judge began her
analysis of Pena’s motion to dismiss the § 2701(a) claim by noting it would be
dismissed unless the Complaint “contains sufficient facts to plausibly show
that, by objectively unreasonable conduct, (1) Pena violated a right in §
2701(a) that (2) was clearly established in August 2009 and still is.”Cruz
Lopez v. Pena, supra.

She also noted that §
2701 creates a cause of action against one who intentionally accesses a
facility through which an electronic communication service is provided without
being authorized to do so and obtains unauthorized access to an electronic
communication while it is in electronic storage. Cruz Lopez v. Pena, supra.

Under 18 U.S. Code §
2510(17), electronic storage is storage of an electronic communication that is
“incidental” to its transmission or is storage an electronic communication
services uses “for backup protection”.Cruz Lopez v. Pena, supra. Cruz Lopez argued that "some" of the "six emails" Pena

allegedly accessed were in electronic storage incident
to transmission. Emails not yet opened by the intended recipient are in such
storage. . . .

But none of the six emails Cruz Lopez accuses Pena of accessing
were unopened: Cruz Lopez must have opened the first email because he responded
to it; he sent the second and third emails, and it is not
clearly established that sent communications are in electronic storage when
accessed from the sender's account. . .; he obviously opened the fourth because
he responded to it; and the fifth and sixth have the same problem as the second
and third.

None of the emails is adequately alleged to have been in electronic
storage on August 8–9, 2009.

Cruz Lopez v. Pena, supra (emphasis in the original).

The judge found Cruz
Lopez’s claim that Pena “might have accessed unopened emails” in his Yahoo! or
Hotmail accounts was too insubstantial to support a finding that Pena violated
§ 2701(a). She therefore dismissed that claim. Cruz Lopez v. Pena, supra.

The other claim arose
under 18 U.S. Code § 2703, which states that the government can require the
provider or remote computing services or electronic communication services if
it obtains a search warrant, court order or subpoena.Cruz
Lopez v. Pena, supra. Pena argued that no relevant case law establishes
that the government violates § 2703 “by hacking into a user’s online email
account,” but the judge noted that § 2703 defines “`the only procedure’” law enforcement can use of obtain the contents of
electronic communications.Cruz Lopez v. Pena, supra (emphasis in
the original) (quoting Steve Jackson
Games, Inc. v. U.S., 816 F.Supp. 432 (U.S. District Court for the Western District of Texas 1993)).

The judge explained
that, in this case, Yahoo!

automatically
disclosed the emails when Pena logged on, so Pena is left arguing that §
2703 is inapplicable as it applies only to required disclosure
. . . and he did not require Yahoo! to do anything because [it] willingly
provided access to the account. It is true that a governmental entity
following § 2703 `may require’ a provider to disclose electronic
communications.

But it is not true that an officer can ignore § 2703 procedures,
hack into an account, and then claim § 2703 is inapplicable because the
provider thought that the officer was the user.

Cruz Lopez v. Pena, supra (emphasis in the original).

The judge therefore
denied the motion to dismiss the Stored Communications Act cause of action,
which means this part of the case can go forward. Cruz Lopez v. Pena, supra.